The Most Ludicrous Statement From A President

Perhaps the most singularly ludicrous thing this president ever has said was what he said to Charlie Rose a few days ago about the NSA surveillance empire that has been coming to light over the past month.

BARACK OBAMA: -- bigger and better than everybody else and we should take pride in that because they're extraordinary professionals. They're dedicated to keeping the American people safe. What I can say unequivocally is that if you are a U.S. person the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails.

CHARLIE ROSE: And have not?

BARACK OBAMA: And have not. They can not and have not -- by law and by rule. And unless they -- and usually it wouldn't be they, it would be the FBI -- go to a court and obtain a warrant and seek probable cause. The same way it's always been. The same way when we were growing up and we were watching movies, you know, you wanted to go set up a wiretap, you've got to go to a judge, show probable cause and then the judge --

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He is referring, of course, to the FISA court and, if your main argument for transparency and oversight is a secret rubber-stamp court issuing secret warrants based on secret evidence, well, you're gonna need a bigger boat there, Skipper. (Ari Melber, god love him, went completely up the wall making these points yesterday on MSNBC. I thought poor Toure was going to fall into catalepsy.) There was a time, and not so long ago, where people (correctly) viewed the FISA court itself as being destructive of the rule of law. This was so high up on the national radar that, in 2004, Law And Orderdid an episode called "City Hall" that centered on evidence gathered by the FBI under a secret FISA warrant, and only cranky old Fred Thompson stood in defense of the practice. FISA didn't get even partly rehabilitated until the Bush Administration started ignoring it entirely and wiretapping people without getting a warrant of any kind. Then, the FISA court was rebooted -- in the public mind, anyway -- as a bulwark against government overreach. This seems to be the position of the president and it is still nonsense. Melber is right and he's wrong. The FISA court remains as useless a vehicle for transparent government as it ever was.

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection. However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

Keep data that could potentially contain details of US persons for up to five years;

Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;

Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.

If you look at the phrase "inadvertently acquired" and see a loophole through which you could sail the Nimitz, you win the House Cup. How in the world do they convince themselves that they can assume this power and that we would be any better at handling it than the East Germans were? Because we insert the right democratic conjuring words into our statutes and then ignore them? The FISA court actually was supposed to be a defense against government spying. It was born in 1978 out of the investigations of the Church Committee into the CIA horrors. But, as soon as it became part of the intelligence apparatus, secrecy corrupted its function the way secrecy corrupts everything else. Now, it's so far from its original mandate that it can never find its way back again.